Definition
Incerte persone (Latin: "uncertain persons") is a term from Roman law referring to individuals or entities that cannot be identified or ascertained with sufficient certainty to take a bequest or inheritance under a will. A gift or legacy made to an incerta persona was traditionally void under Roman law because legal transfer required a definite, identifiable recipient.
The category is broader than it might first appear. It encompasses not only persons who are literally unknown, but persons whose identity cannot be legally fixed at the time the will is executed or takes effect. Classical Roman law identified several classes of incerte persone:
1. Posthumous heirs — persons not yet born, whose existence and identity depend on future events.
2. Corporations and collective bodies — juristic persons whose membership or composition may be indeterminate.
3. The poor, the hungry, or similar indefinite charitable classes — groups described by condition rather than by individual identity.
4. Persons whose identity will only become ascertainable after the will's execution — typically contingent on future events outside the testator's knowledge or control.
The doctrine reflected the Roman law requirement that a testamentary beneficiary be a persona certa — a certain, ascertainable person — at the time the will operated. Gifts to incerte persone were not merely unenforceable; they could, if numerous or central enough, imperil the validity of the will itself.
Common Confusion
The concept of incerta persona should not be conflated with the modern common law problem of uncertainty in charitable bequests, though the two are related in spirit. Roman law voided gifts to indefinite classes outright; English and American equity courts developed cy-pres doctrine and other remedial tools to save charitable gifts that would otherwise fail for want of a certain beneficiary. A researcher tracing this concept through common law sources will find the underlying concern — can the law identify who takes? — persisting under different vocabulary and different remedial frameworks.
Why It Matters in Research
This is a term of Roman law that appears in Anglo-American legal sources primarily through treatises on civil law, comparative law, and the history of testamentary doctrine. Researchers will encounter it most often in:
— 19th-century treatises on Roman private law and their English translations, including Sohm's Institutes of Roman Law, which Bouvier cites directly.
— Historical discussions of charitable bequests and the development of cy-pres, where courts and commentators traced the common law problem back to its Roman antecedents.
— Comparative law scholarship on legal personality and the capacity of corporations, religious bodies, or undefined classes to take property.
The practical trap for corpus researchers is terminological drift. Modern sources discussing the same functional problem — indefinite or unascertainable beneficiaries — rarely use the Latin phrase. Searches limited to incerte persone will surface the historical and civilian materials; searches for "uncertain beneficiary," "indefinite class," or "ascertainable beneficiary" will surface the common law treatment. Neither search alone captures the full picture.
The doctrine also connects to questions of legal personality. The inclusion of corporations and juristic persons in the class of incerte persone reflects the Roman law difficulty in conceptualizing abstract entities as property-holding subjects — a problem that generated centuries of legal development in both civil and common law traditions.
Historical Dictionary Support
Bouvier's single entry is compact but accurate in its essentials. It correctly identifies the core categories — posthumous heirs, corporations, the poor, juristic persons, and persons unascertainable until after execution — and grounds the definition in Sohm's Institutes, a reliable 19th-century synthesis of Roman private law.
What Bouvier does not address is the doctrinal mechanism: Roman law's rule that gifts to incerte persone were void, not merely suspended. Nor does Bouvier trace how this Roman prohibition was modified, absorbed, or rejected in subsequent civil and common law development. The entry treats the term as a reference point rather than a living doctrine, which is appropriate given that by Bouvier's time the pure Roman rule had been substantially displaced in most jurisdictions by statutory and equitable modifications.
Researchers should note that Bouvier's entry functions as a definitional flag directing attention to Sohm, not as a self-contained account of the doctrine's operation or limits.
Jurisdictional Note
The incerte persone doctrine in its classical Roman form does not operate directly in common law jurisdictions. Its descendants — rules on certainty of objects in trust law, cy-pres doctrine in charitable bequest law, and statutory provisions on posthumous beneficiaries — vary significantly by jurisdiction and should be researched under those modern headings rather than under the Latin original.